Posted by: Patricia Salkin | November 11, 2008

Kansas Supreme Court Says Simple Majority Vote Needed to Overturn Remand Recommendation of Planning Commission

This case arises from a request by a school district to the City for a special use permit to allow the construction of an illuminated softball complex and stadium.  The area was zoned agricultural which allowed for a softball field but not a stadium with lights.  Following a public hearing, the planning commission recommended that the City Council deny the special use permit, based on the impact of the proposed use on surrounding properties by a vote of 4 to 3. The City Council initially remanded the application to the planning commission seeking an examination of four enumerated items.  Upon reconsideration, the Commission reaffirmed its previous recommendation by a vote of 5 to 3. The City Council reconsidered the application, and following a public hearing, a motion to deny the permit failed on a 4 to 4 vote. A motion to grant the permit and to modify a conflicting section of the City’s comprehensive plan was approved on a 5 to 4 vote with the Mayor casting the deciding vote.  Neighboring property owners filed suit, the crux of which focused on the initial City Council vote and whether the Council had authority to grant a special use permit with a simple majority vote after the planning commission recommended denial.


The Kansas Supreme Court, applying K.S.A. 12-757(d) noted that the statute sets forth the following three options for a legislative body that wishes to take action upon a proposed zoning amendment following receipt of an initial recommendation from the planning commission: 1) take the recommended action by a simple majority vote; 2) take contrary action by a 2/3 vote; or 3) remand the proposal to the commission for reconsideration. Where the third option is selected, as in the present case, the Court explained that the statute directs that the planning commission may: 1) resubmit its original recommendation with an explanation of the reasons for this action; 2) submit a new/amended recommendation; or 3) fail to timely deliver a recommendation by the next regularly scheduled Commission meeting, in which case the original recommendation will be deemed resubmitted.  After the City Council receives the returned remand from the Commission, the statute gives the City three options: 1) follow the recommendation of the Commission; 2) revise or amend the recommendation; or 3) take no further action.  The statute specifically provides that where the Council takes the first two actions, it may do so by a simple majority vote. Therefore, the Supreme Court held that the District Court misinterpreted the statute as requiring a two-thirds majority vote.


The Court further dismissed the neighboring property owners’ procedural due process claims finding that they received appropriate notice pursuant to State statute, and that they appeared at the public hearing and had an opportunity to be heard. Although on remand, the Planning Commission did not hold a second public hearing, the Court noted that nothing in the statute required a second hearing.


Manly v City of Shawnee, 2008 WL 4601313 (Kan. 10/17/2008).


The opinion is available at:

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